IN THE COURT OF APPEAL AT MOMBASA [CORAM: MUSINGA, KIAGE & SICHALE, JJ.A.] CIVIL APPLICATION NO. E. 207 OF 2020 BETWEEN KENYA PORTS AUTHORITY PENSION SCHEME.........................1ST APPLICANT ALBERT CHAUREMBO MUMBA......................................................2 ND APPLICANT ABDALLAH H. MWARUWA.................................................................3 RD APPLICANT M.K. MURE.............................................................................................4 TH APPLICANT MARY WAIRIMU NG’ANG’A............................................................. 5TH APPLICANT ALEX OLE-TEIPAN..............................................................................6 TH APPLICANT MARY OTIENDE...................................................................................7 TH APPLICANT MARGARET NYAGA............................................................................8 TH APPLICANT MAJENGO KATANA (sued on their own behalf and on behalf of the Predecessors and/or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pension Scheme............................9TH APPLICANT AND KINYUA MUYAA & CO. ADVOCATES.................................................RESPONDENT (Being an application for stay of execution pending the hearing and determination of an appeal from the Ruling and order of the Employment & Labour Relations Court of Kenya at Mombasa (James Rika, J) dated 17th July, 2020 IN ELRC Misc. Civil Application No. 13 of 2015) ***************************** RULING OF THE COURT 1. UPON perusing the Notice of Motion dated 20th July, 2020 by the applicant, Kenya Ports Authority Pension Scheme, brought under
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Rule 5(2)(b) of the Court of Appeal Rules, where the applicant seeks an order of stay of execution of the ruling and orders made on 17th July, 2020 in Misc. Civil application No. 13 of 2015; Kinyua Muyaa & Company Advocates, Kenya Ports Authority Pension Scheme & 8 others pending the hearing and determination of the intended appeal against the ruling of 17th July, 2020; and 2. UPON perusing the supporting affidavit of Stephen Kyandih sworn on 20th July, 2020 and the supplementary affidavit sworn on 21st September, 2020 by Peter Mbuthia Gachuhi; and 3. UPON perusing the replying affidavit sworn on 10th August, 2020 and the “further replying affidavit in reply” sworn on 22nd September, 2020 both by F. Kinyua Kamundi, a partner in the firm of Kinyua Muyaa & Co. Advocates on behalf of the respondents; and 4. UPON perusing the applicant’s submissions where the applicant contends that it has an arguable appeal as it intends to challenge on appeal whether a judgment that has been set aside for being a nullity for want of jurisdiction can be a basis for assessing instruction fees between an advocate and a client; further that the applicant is apprehensive that, absent stay, the respondent will move to execute the impugned ruling of 17th July,2020; and 5. UPON perusing the respondent’s submissions in which it is submitted, inter alia, that the intended appeal is frivolous; and 6. HAVING considered the principles that guide this Court in the determination of Rule 5(2)(b) applications as set out in Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 others [2013] eKLR and noting that the applicant has demonstrated that it has an arguable appeal, that will be rendered nugatory, absent stay, we make the following orders: (i) The Notice of Motion dated 20th July, 2020 is allowed. (ii) Costs of the motion shall be in the intended appeal. Dated and Delivered at Nairobi this 4th Day of December, 2020. D. K. MUSINGA ................................... JUDGE OF APPEAL P.O. KIAGE .................................... JUDGE OF APPEAL F. SICHALE .................................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed
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DEPUTY REGISTRAR
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